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The gaps in international law for climate migrants

Image by Jean Wimmerlin, sourced Unsplash.com.

By Jack Rafferty, Environmental Science Graduate, University of Sydney
Published 31 August 2018

At the end of 2015, the total number of refugees and displaced people in the world reached 65.3 million (Edwards, 2018). This is the highest number of displaced people in history, exceeding even the refugee crisis caused by World War Two. Many of these people have been displaced by violence and persecution, but this may not always be the primary cause of forced displacement. With the growing impacts of climate change expected to cause further displacement, as drought and rising sea levels make millions of people’s homes uninhabitable,1 this number is only set to grow.

And there’s a further problem here. Despite their displacement, and despite their dire need, climate migrants have almost no legal protections.

Why don’t climate migrants have legal protections?

Despite their situation, climate migrants have very few rights afforded to them beyond those of traditional migrants, and the reason seems, essentially, to be due to a failure of bureaucracy. Rather than this lack of intention being an intentional policy, climate migrants are a relatively new category, who have not yet been catered for. Allow me to explain.

Refugees, under international law, are theoretically afforded certain protections. Nations are bound to provide access to courts, identity papers, travel documents, and the opportunity for resettlement (Article. 1, Convention Relating to the Status of Refugees, 1951). Countries are also theoretically barred from expelling refugees or forcing them to return to their countries of origin. These rights were first decided under the 1951 Refugee Convention, and it was at this convention that the term ‘refugee’ was officially defined. Specifically, a refugee was defined as someone “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” (Article. 1, Convention Relating to the Status of Refugees, 1951). And this is where our problem begins.

To be considered a refugee under this Convention, you must be someone fleeing violence or persecution. But while it can cause displacement and starvation, climate change does not engage in violence; and desertification and sea level rise do not discriminate based on race or political persuasion. It is because of this quirk of language that climate migrants are not legally considered refugees. And due to the wording of this treaty, they are afforded none of the protections that refugees would normally be given under international law.

Of course, this problem would not be as serious if there were other agreements which dealt specifically with climate migrants — but no such agreements exist on an international level. In essence, this problem is a bureaucratic failure, where a small number of people have fallen through the cracks of international law, and have found no other treaties or agreements to cushion their fall. And as the impacts of climate change grow, this bureaucratic failure is going to impact more and more of the world’s most disadvantaged people.

Is there a solution?

Advocates often push for a new treaty to give distinct rights to climate migrants, and this is theoretically a good move. It would apply protections under international law where currently, there are none. However, while, this is an incomplete solution. While international treaties could be useful, precedent suggests they are unlikely to be enough. At present, 148 countries have signed the current refugee convention, yet the current number of refugees worldwide is the highest in history. Nation states are shirking the responsibility to ratify this ‘binding’ treaty. As the treaty is close to unenforceable, it is not enough on its own to offer refugees the protection they need.

While a treaty may be useful, it is unlikely to be sufficient. There are of course other actions that have been suggested. Countries can take steps in the present to minimise the risk of future displacement using climate adaptation methods to solve climate refugee crises before they even occur (Grecequet, Noble and Hellman, 2017). In lesser cases, at risk countries can also plan for expected displacement, developing internal migration strategies where possible. Some have even suggested policies which would enhance voluntary migration from severely at-risk countries, allowing planned relocations before the crisis has stuck (Black et al, 2011).

However, many of these proposed solutions converge on a single, deeper problem: How do we incentivise governments to care for the people that they currently ignore? For that question, I have no clear answer. But while international treaties won’t be the end solution, they’re a start. And to those who have lost their homes, a start is far, far better than what we have now.

1. Here, we’ll constrain our conversation to talk about climate migrants who have no option to return home; because their home no longer exists, or is no longer habitable. Examples of this include displacement due to sea level rise or desertification. Notably, this excludes temporary climate migrants, displaced by natural disasters such as Earthquakes or Tsunamis. We will also focus on those displaced internationally. People displaced internally (within their own country) are more easily catered for because responsibility for their protection is far more clearly assigned, and they are less likely to require an international response.

Jack Rafferty is a University of Sydney Graduate, having completed degrees in Environmental Science and Philosophy. He works in the private sector, and is primarily interested in climate change, commons dilemmas, and arms races. He lives in Sydney.

The Sydney Environment Institute is located on the Gadigal lands of the Eora Nation. We pay our deepest respects to the traditional owners of this land, and Elders past, present and emerging, and acknowledge that sovereignty was never ceded.